Saturday, July 12, 2008

The Role of Domestic Courts in Treaty Enforcement - A Comparative Study, edited by David Sloss and Derek Jinks, will be published later this year by Cambridge University Press. A number of chapters have recently been posted on SSRN:

John Dugard (Leiden Univ. - Law & Member, International Law Commission) on South Africa

Hanqin Xue (Ambassador of the People's Republic of China to the Netherlands & Member, International Law Commission) & Qian Jin (Division Chief, Treaty and Law Department, Ministry of Foreign Affairs, People's Republic of China) on China

Friday, July 11, 2008

Yesterday, a Dutch district court ruled that the United Nations has immunity from a suit that sought to hold the international organization liable for failing to prevent the massacre at Srebrenica. The decision (in English) is here. Background on the case (from the plaintiffs' attorneys) is here; IWPR story here; AFP story here; Reuters story here; comment by the Invisible College Blog here. The plaintiffs will appeal. Here's a summary of the decision provided by the court:

In the civil case brought by the Association ‘Mothers of Srebrenica’ and ten individual plaintiffs (the Association et al.) versus the State of the Netherlands and the United Nations (UN) the District Court in The Hague has declared it has no jurisdiction to hear the action brought by the plaintiffs against the UN.

The court passed this judgment today in the ancillary claim instituted by the State of the Netherlands to determine whether the court has jurisdiction. At issue in these incidental proceedings were not yet the actions by the plaintiffs in the principal case, but strictly the question whether a Dutch court is competent to hear this civil action insofar as it pertains to the United Nations.

Central to the issue of whether a Dutch court has jurisdiction in this case is the question whether this case offers grounds or reasons to make an exception to the immunity enjoyed by the UN under international law. This immunity is laid down in Article 105, subsection 1 of the UN Charter and detailed in article II, paragraph 2 of the Convention on the Privileges and Immunities of the United Nations (the Convention).If the UN enjoys immunity, it cannot be summoned to appear before a court of law, in this instance a Dutch court. The Dutch court then lacks jurisdiction and is incompetent.

In the incident as to competence the State argued that the UN enjoys immunity; the Association et al. challenged this, claiming that the action of the UN in Bosnia-Herzegovina falls outside the scope of the immunity. The UN’s immunity has boundaries which have been overstepped in this case.

In deciding the matter of whether or not the UN enjoys immunity in this case the court first considered how the immunity, enshrined in article 105, subsection 1 of the UN Charter and developed in article II, paragraph 2 of the Convention on the Privileges and Immunities of the United Nations is interpreted and applied to prevailing law in international practice. The court concludes that in international-law practice absolute immunity of the UN is the standard and is respected, and that the interpretation of article 105 of the UN Charter offers no basis for restriction of the immunity of the UN.

Subsequently, the court considered whether the absolute immunity of the UN under international law is in conflict with other standards of international law, such as the standards of the International Covenant on Civil and Political Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Genocide Convention. This did not lead to an exception to this immunity.

The ancillary claim brought by the State that the court is incompetent in the case of the Association et al. versus the UN should therefore be allowed. The court declares it is incompetent to hear the action instituted against the UN.

I've noted before that there has been a lot of talk this election campaign about the creation of a League (or a Concert or an Alliance) of Democracies. Anne-Marie Slaughter (Princeton Univ. - Woodrow Wilson School) and John Ikenberry (Princeton Univ. - Politics and Woodrow Wilson School) have an op-ed in today's Financial Times that defends the idea. Here it is:

The first big foreign policy debate of the presidential campaign has focused on Senator John McCain’s proposal for a League of Democracies. Proponents of this new grouping see it as a mechanism to legitimise the American use of force when the United Nations fails to authorise collective action, and as a vehicle to strengthen the forces of democracy in the face of rising authoritarian states, such as China and Russia. Critics see it as a dangerous idea – potentially subverting the UN and creating divisions among the great powers precisely when the US should be building closer ties.

As authors of the Princeton Project on National Security report that first proposed a “Concert of Democracies”, we believe that both sides of this debate have failed to see the true promise and role of greater co-operation among the world’s leading democracies. The pre-eminent need today is not an exclusive club of democracies, but renewal of the world’s global architecture – the UN, Bretton Woods and the Group of Eight leading nations. It is in the context of this larger agenda that a Concert of Democracies can be helpful.

Over the past half-century, two logics of global organisation have co-existed. One was the great power order symbolically centred in the UN Security Council and the other was the western democratic order that was centred in Washington but also present in London, Paris, Bonn, Tokyo, Brussels and elsewhere. It was the unusual capacities of liberal democracies to organise, produce and work together that ensured victory in the struggle of the 20th century between democracy and communism. In proposing a Concert of Democracies, we are urging the world’s democracies once again to work together – this time to renew and expand world governance capacities.

Although conventional wisdom sees the post-second-world-war democratic order primarily as a bulwark against communism, institutions such as the Organisation for Economic Co-operation and Development, the General Agreement on Tariffs and Trade (which evolved into the World Trade Organisation), the European Union and Nato in its later years succeeded best when they acted as vehicles to allow a group of countries to co-operate in the pursuit of common interests.

Those common interests today are quite different. They begin with widening the circles of global decision-making. A Concert of Democracies could bring India, South Africa, Brazil, Indonesia, Mexico, Chile, Argentina, Turkey and many others to the table well before they are likely to succeed in getting there in current institutions.

One of the arguments advanced against Senator McCain’s League is that it presumes a higher degree of harmony among the world’s democracies than is supported by the evidence. But the one thing these countries agree on is that they should have more of a say in global affairs. By making clear that liberal democracy is not confined to “the west”, a Concert would redraw the geopolitical map and open spaces to reform global institutions to reflect the world they purportedly represent.

One place to start is to call a new Bretton Woods conference to retrofit the International Monetary Fund and the World Bank to meet the economic challenges of the 21st century rather than those of the 1930s. There is an urgent need to make globalisation work for everyone. Globalisation makes nations richer in the aggregate and has helped hundreds of millions to rise out of poverty, but it is also widening inequality in ways that breed anger, resentment and despair. A Concert of Democracies reaching from Brasilia to Ankara to Seoul could lobby within the UN for such a conference and ensure that once convened it achieved its purpose.

Another immediate task for a Concert of Democracies would be to achieve the long-awaited expansion of the G8 to a G13 or a G16. Expansion to a G13 would add China, India, Brazil, South Africa and Mexico; expansion to a G16 would include Indonesia, Turkey and either Nigeria or Egypt. Almost all these countries are democracies, but a Concert of Democracies that included southern as well as northern democracies would insist on including China in any expansion of the G8. That fact highlights the contrast between our Concert and Senator McCain’s proposal of a League of Democracies, together with the expulsion of Russia from the G8. Democracies understand the need to have effective global institutions that include all important powers.

Some critics fear that a Concert of Democracies would amplify American power and the resistance to it around the world. In fact, it would be a more effective multilateral council to check rash, unilateral US initiatives. If the US had proposed invading Iraq within a Concert of Democracies, the opposition of friendly democracies around the world would have reinforced the opposition of the Security Council in ways that would have had greater resonance in American public opinion.

The next American president should not begin his term by pushing for a Concert of Democracies. He should, however, consult with democracies around the world to explore support for the idea in the context of pushing for reform of existing global institutions. If such support exists, and we suggest it does, America should be willing to join with other democracies in making those institutions reflect the global distribution of power among all countries in the 21st century.

Non-citizens include asylum seekers, rejected asylum seekers, immigrants, non-immigrants, migrant workers, refugees, stateless persons, and trafficked persons. This book argues that regardless of their citizenship status, non-citizens should, by virtue of their essential humanity, enjoy all human rights unless exceptional distinctions serve a legitimate State objective and are proportional to the achievement of that objective. Non-citizens should have freedom from arbitrary arrest, arbitrary killing, child labor, forced labor, inhuman treatment, invasions of privacy, refoulement , slavery, unfair trial, and violations of humanitarian law. Additionally, non-citizens should have the right to consular protection; equality; freedom of religion and belief; labor rights (for example, as to collective bargaining, workers' compensation, healthy and safe working conditions, etc.); the right to marry; peaceful association and assembly; protection as minors; social, cultural, and economic rights.

There is a large gap, however, between the rights that international human rights law guarantee to non-citizens and the realities they face. In many countries, non-citizens are confronted with institutional and endemic discrimination and suffering. The situation has worsened since September 11, 2001, as several governments have detained or otherwise violated the rights of non-citizens in response to fears of terrorism. This book attempts to understand and respond to the challenges of international human rights law guarantees for non-citizens human rights.

David Palmeter, The WTO Dispute Settlement System in the Next Ten Years

Steve Charnovitz, Mapping the Law of WTO Accession

Panel Discussion. The Dispute Settlement System in the Next Ten Years – Julio Lacarte Muró, Jane Bradley, Steve Charnovitz, Robert Howse, David Palmeter

Sharyn O’Halloran, US Implementation of WTO Decisions

Ernst-Ulrich Petersmann, Multi-level Judicial Trade Governance without Justice? On the Role of Domestic Courts in the WTO Legal and Dispute Settlement System

Robin Hansen & Donald McRae, Reconciling the International and the Domestic: The Reasonable Period of Time under Article 21.3 of the DSU

Panel Discussion. Implementation of WTO Rulings: The Role of Courts and Legislatures in the United States and Other Jurisdictions – Giorgio Sacerdoti, Thomas Aquilino, Jr, George Bermann, Donald McRae, Sharyn O’Halloran, Ernst-Ulrich Jetersmann

Thursday, July 10, 2008

This afternoon, the Senate Foreign Relations Committee held a hearing on the following treaties:

Protocol Amending the Convention Between the United States of America and Canada with Respect to Taxes on Income and on Capital (Treaty Doc. 110-15);

Convention Between the Government of the United States of America and the Government of Iceland for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, and accompanying Protocol (Treaty Doc. 110-17);

Convention Between the Government of the United States of America and the Government of the Republic of Bulgaria for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, with accompanying Protocol (Treaty Doc. 110-18);

International Convention on the Control of Harmful Anti-Fouling Systems on Ships (Treaty Doc. 110-13);

1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (Treaty Doc. 110-5);

Protocol Concerning Pollution from Land-Based Sources and Activities to the Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region, with Annexes (Treaty Doc. 110-1);

Amendments to the Constitution and Convention of the International Telecommunications Union, as contained in the Final Acts of the Plenipotentiary Conference (Antalya, 2006) (Treaty Doc. 110-16);

Amendments to the Constitution and Convention of the International Telecommunications Union, as contained in the Final Acts of the Plenipotentiary Conference (Marrakesh, 2002) (Treaty Doc. 109-11);

1995 Revision of the Radio Regulations, with appendices, as contained in the Final Acts of the World Radiocommunication Conference (WRC-95) (Treaty Doc. 108-28);

Amendments to the Constitution and Convention of the International Telecommunications Union, as contained in the Final Acts of the Plenipotentiary Conference (Minneapolis, 1998) (Treaty Doc. 108-5); and

1992 Partial Revision of the Radio Regulations, with appendices, together with declarations and reservations of the United States as contained in the Final Acts of the World Administrative Radio Conference (WARC-92) (Treaty Doc. 107-17).

Witnesses included: Michael Mundaca (Deputy Assistant Secretary (International), Office of Tax Policy, Department of the Treasury); Emily S. McMahon (Deputy Chief of Staff, Joint Committee on Taxation, U.S. Congress); David A. Balton (Deputy Assistant Secretary for Oceans and Fisheries, Bureau of Oceans and International Environmental and Scientific Affairs, Department of State); and Richard C. Beaird (Senior Deputy U.S. Coordinator for International Communications and Information Policy, Bureau for Economic, Energy, and Business Affairs, Department of State). Links are to the witnesses' written statements.

Today, the ICTY Trial Chamber rendered its judgment in the case (No. IT-04-82) against Ljube Boškoski, former Minister of Interior of the Former Yugoslav Republic of Macedonia, and Johan Tarčulovski, former police officer in the Ministry of Interior. The defendants were each charged (amended indictment here) with three counts of war crimes (murder; wanton destruction of cities, towns, or villages; and cruel treatment) related to the August 12, 2001, attack on ethnic Albanians in Ljuboten. Boškoski was charged under a theory of superior responsibility for failing to take necessary and reasonable measures to punish the perpetrators. Tarčulovski was charged as a co-perpetrator for participation in a joint criminal enterprise, for ordering, planning, and instigating the crimes, and for aiding and abetting the crimes. The trial began on April 16, 2007; closing arguments were given from May 6-8, 2008.

In today's decision (summary here; press release here; judgment not yet available online), the Trial Chamber acquitted Boškoski of all charages but convicted Tarčulovski on all three counts. Tarčulovski was sentenced to twelve years imprisonment. With respect to Boškoski, the Trial Chamber found that while there was "a serious failure of the functioning of the police and the responsible Macedonian authorities at that time, it has not been established that Ljube Boškoski failed to take the necessary and reasonable measures for the punishment of the police." Tarčulovski was found to have committed the crimes alleged in the indictment, except for the allegation of participating in a joint criminal enterprise. In addition, the Trial Chamber noted, "Tarčulovski was himself acting under orders in carrying out the police operation in Ljuboten. The evidence does not enable the person or persons responsible for the orders to Johan Tarčulovski to be identified. The circumstances confirm it was a person or persons superior to him."

The Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea aims to create a modern and uniform law concerning the international carriage of goods which include an international sea leg, but which is not limited to port-to-port carriage of goods. In addition to providing for modern door-to-door container transport, there are many innovative features contained in the draft Convention, including provisions allowing for electronic transport records, and other more technical features to fill the perceived gaps in existing transport regimes. Extensive negotiation by the Member States and observers of the Commission has resulted in overwhelming support for a significant increase to the limits on carrier liability for cargo loss or damage that apply in most countries. This is expected to be of substantial benefit for shippers, particularly those in developing and least-developed countries, which are consumers of transportation services. It is expected that harmonization and modernization of the legal regime in this area, which in many countries dates back to the 1920s or earlier, will lead to an overall reduction in transaction costs, increased predictability when problems are encountered, and greater commercial confidence when doing business internationally.

Tuesday, July 8, 2008

Yesterday, July 7, the President transmitted to the Senate, for its advice and consent to ratification, the International Treaty on Plant Genetic Resources for Food and Agriculture, adopted by the Food and Agriculture Organization of the United Nations on November 3, 2001. The transmittal package (Treaty Doc. 110-19) is here. The United States signed the treaty on November 1, 2002. The treaty entered into force on June 29, 2004, and currently has 116 parties.

The President's message notes:

The centerpiece of the Treaty is the establishment of a multilateral system under which a party provides access to other parties, upon request, to listed plant genetic resources held in national genebanks. These resources are to be used solely for purposes of research, breeding, and training in agriculture. A recipient of such a resource must then share the benefits from its use, e.g., a recipient who commercializes a product containing an accessed plant genetic resource must generally pay a percentage of any gross sales into a trust account. Transfers under the multilateral system are to be accompanied by a standard material transfer agreement, the current version of which was concluded in June 2006. Provision of plant genetic resources from U.S. genebanks is fully consistent with the Department of Agriculture's long-standing general practice of providing access to such plant genetic resources upon request. Ratification of the Treaty will provide U.S. agricultural interests with similar access to other parties' genebanks, thus helping U.S. farmers and researchers sustain and improve their crops and promote food security. The Treaty may be implemented under existing U.S. authorities.

Russell Miller (Washington and Lee Univ. - Law) & Rebecca Bratspies (City Univ. of New York - Law) have published Progress in International Law (Martinus Nijhoff Publishers 2008). Here's the abstract:

Progress in International Law is a comprehensive accounting of international law for our times. Forty leading international law theorists analyze the most significant current issues in international law and their critical assessments draw diverse conclusions about the current state and future prospects of international law. The material is grouped under the headings: The History and Theory of International Law; The Sources of International Law and Their Application in the United States; International Actors; International Jurisdiction and International Jurisprudence; The Use of Force and the World's Peace; and The Challenge of Protecting the Environment and Human Rights. The book draws its inspiration from a similar survey undertaken in 1932 by Harvard Law Professor and PCIJ Judge Manley O. Hudson. In his book Progress in International Organization, Hudson sought to demonstrate that what he perceived as an emerging international infrastructure, and as moves toward the rule of law in international affairs, were sure signs of human progress towards peace and cooperation. Progress in International Law critically engages with that claim as a normative matter and, at the same time, presents the evidence by which a judgment about our own progress towards peace and cooperation might be judged.

Monday, July 7, 2008

On Friday, June 13 (while I was on vacation), at the eighteenth meeting of the States Parties to the United Nations Convention on the Law of the Sea, seven persons were elected to the International Tribunal for the Law of the Sea for nine-year terms commencing on October 1, 2008. Those elected included five sitting judges (Joseph Akl; José Luis Jesus; Vicente Marotta Rangel; P. Chandrasekhara Rao; and Rüdiger Wolfrum) and two new judges (Boualem Bouguetaia and Vladimirovitch Golitsyn).

On June 5 (while I was on vacation), Luis Moreno Ocampo, Prosecutor of the International Criminal Court, delivered a statement and report to the United Nations Security Council, pursuant to U.N. Security Council Resolution 1593 (2005).

Norman Farrell, a Canadian national, has taken up the post of Deputy Prosecutor at the International Criminal Tribunal for the former Yugoslavia. He replaces David Tolbert, who is now the Secretary-General's Special Expert on United Nations Assistance to the Extraordinary Chambers in the Courts of Cambodia. Readers will recall that Tolbert was favored by some to replace Carla Del Ponte as the ICTY's Prosecutor prior to Serge Brammertz's appointment to that post in November.

These are the 2007 Fordham Papers, the first annual volume of papers on international arbitration and mediation written by leading figures in these fields who spoke at the 2007 annual conference on international arbitration and mediation held at the Fordham Law School in New York City. The five chapters of 23 papers address current issues of international arbitration, including investor-state arbitration, the conduct of international arbitration and jurisdictional issues, remedies and defenses, recent developments in arbitrator disclosure law and practice, and international mediation, including ethics, training, process, and growth of mediation. The papers focus on both practical considerations and scholarly analyses. Contributors include: Antonio Parra, Lucy Reed, Daina Bray, Brigitte Stern, Barton Legum, Charles Brower, Michael Ottolenghi, Yves Derains, Judith Gill, John Barcelo, Yuval Shany, Jonas Benedictsson, Julian Lew, Sigvard Jarvin, Richard Mosk, Robert Davidson, James Carter, Lorraine Brennan, Michael Hwang, Katie Chung, Fong Lee Cheng, Kathleen Scanlon, Fern Smith, Jon Lang, Eileen Carroll, Norris Yang, and Mercedes Tarrazon.

William W. Burke-White, The Domestic Influence of International Criminal Tribunals: The International Criminal Tribunal for the Former Yugoslavia and the Creation of the State Court of Bosnia-Herzegovina

Sunday, July 6, 2008

On Tuesday, July 1, Japan acceded to the United Nations Convention on Contracts for the International Sale of Goods, becoming the Convention's seventy-first State party. The Convention enters into force for Japan on August 1, 2009. The Secretary-General's depositary notification is here. The Japanese Ministry of Foreign Affairs press release notes that "It is expected that the accession to the Convention will remove uncertainty regarding the law applicable to trade between Japanese parties and those of other contracting states, and will facilitate international trade involving Japanese parties."